Applying Cynefin Complexity Theory to Mediation

Abstract

La version anglaise de ce document peut être trouvé à l'adresse http://ssrn.com/abstract=2859264

This paper looks at how complexity theory can help guide mediators, ADR professionals and lawyers to constructively engage with the fast emerging collaborative economy. An economy built on the creative tension between risk-taking and innovation. Balancing this tension and establishing a culture of trust is essential for maintaining the increasingly short time at the top in the 21st century economy.

This risk taking culture challenges the relevance of the traditional adversarial solution focused approach by the legal profession and the judiciary. It has special implications for the retired judge/ senior counsel command and control mediation model.

Cynefin is a Welsh word that means we are influenced by multiple factors in our environment that we can never fully understand. It is a good way to describe the complex world we are experiencing in this early part of the 21st century.

The Cynefin framework is a practice-based management system that seeks to modulate complexity rather than trying to constrain it. It challenges the command and control style of alpha leaders particularly in a complex environment.

It requires leaders who can manage the flow of networks between people in a way that allow for a safe space for minority views, diverging opinions, conflict and internal disruption. This is the best pathway to creating strategic surprises and opportunities.

Complexity theory and the Cynefin approach is an insightful way of thinking that has direct application to mediation, conflict resolution in general and peace building practices.

ADR theorists and academics point to at least five models of mediation. However from a practice perspective there are only two models. The model that involves the parties working together in a joint session and the model that does not (caucused or shuttle mediation).

The caucused mediation model is often conducted by alpha mediators (retired judges and senior lawyers) using a command and control approach.

Mediating with the parties in the joint session requires mediators who can allow a fresh interaction between the parties in real time. It is a way of moving the focus away from the past and the future and on to the immediacy of the present.

This is in harmony with complexity theory and the Cynefin approach of understanding and managing from the present rather than drawing from the past or hypothesising a future goal and trying to close the gap. It is managing for emergence rather than outcome.

This paper examines the guiding principles behind the Cynefin approach and its application to management practices and applies them to the two practice models of mediation, the joint session approach and the caucused approach.

Keywords: Cynefin, Mediation, Alternative Dispute Resolution, Complexity theory, Complex Adaptive System, Obliquity Theory, Disruption, Fluid Skills

JEL Classification: A1, A12, A13, C5, D00, D2, D74, D80, H1, K12, K1, l2, M1, M2, O3, O4